Behind the Scenes of BrownE.
Barrett Prettyman, Jr. ’53 Sensed History
in the Making

• Cullen Couch

The Washington monument
looms just outside his window. The walls of his office at
Hogan & Hartson
are festooned with photographs of him with some of the century’s
most renowned jurists, authors, and politicians. Soft-spoken,
and as articulate as one would expect of a man who has argued
19 cases in front of the U.S. Supreme Court, E. Barrett Prettyman,
Jr. ’53, is surrounded by the images of his episodic
life.

Born in the District and son of a
former Chief Judge of the U.S. Court of Appeals for the D.C.
Circuit, Prettyman cut his teeth on the city and its politics.
A partner in Hogan & Hartson
since 1964, Prettyman also served as Special Assistant to Attorney
General Robert F. Kennedy ’51 helping to free the prisoners
of the Bay of Pigs invasion, and special Counsel to the House
of Representatives during the ABSCAM investigation twenty years
later. He also served as the first president of the D.C. Bar,
which now numbers almost 80,000 members.

He has chatted with Fidel Castro at
Ernest Hemingway’s
house in Cuba, teamed with Truman Capote in a documentary
critical of the death penalty, and won the Mystery Writers
of America Edgar Allen Poe award in 1961 for his book Death
and the Supreme Court. He represented Ship of Fools novelist
Katherine Anne Porter during the last 20 years of her life
and, in an act of extreme literary courage, befriended at the
same time Gore Vidal and Norman Mailer. As a former president
of the PEN/Faulkner Foundation, he calls as friends many of
the best writers of our day.

From the rough
draft of a memo Prettyman wrote for Justice Robert H.
Jackson, critiquing his concurring opinion in Brown. Neither
the memo nor Justice Jackson’s opinion were ever
published. Papers of E. Barrett Prettyman, Jr., 1944 (1953-1955)-1982,
MSS 86-5, Special Collections, University of Virginia
Law Library.

After graduating from the Law School, Prettyman
began his remarkable career as the only person to have clerked
for three separate U.S. Supreme Court Justices during a single
term: Justice Robert H. Jackson during the reargument of Brown
v. Board of Education, then Frankfurter after Jackson ’s
death, and Harlan when he replaced Jackson . The Brown case
was already in the news, so Prettyman knew before he arrived
that he was going to be at the epicenter of the Court’s
most important opinion of the 20th century.

Warren Brings a New Dynamic

Fred M. Vinson was still Chief Justice and by all accounts
a vote for Plessy. When Vinson died in September 1953
and Earl Warren took his place, Prettyman and his fellow clerks
sensed that everything was about to change. “We knew
very early on that Warren was a vote to overturn Plessy and
we knew that he was going to take on the initial job of drafting
the opinion.We did not know how the vote was going to go, but
all of a sudden it began to look more as if this was going
to be unanimous.”

Prettyman saw how Warren brought new
drive and direction to the Court. Though Vinson was a “very likable, easy-going
fellow,” Prettyman believes he was not “intellectually
among the very top justices” and didn’t have the
inclination to lead the Court in any discernible way. By contrast,
Warren was “a politician, quite dynamic and forceful,
knew everyone’s name in the building, and had a great
deal of magnetism about him. He was also tough. He meant business.
The atmosphere changed. You had a feeling that things were
going to come together now.”

Prettyman watched Thurgood Marshall
and John W. Davis present oral arguments. Davis was an “old
hand” having
argued more cases in the Supreme Court than any lawyer of his
day. Marshall used a more informal approach.

PRETTYMAN KNEW
BEFORE HE ARRIVED that he was going to be at the
epicenter of the Court’s most important opinion
of the 20th century.

“I thought for what Davis was attempting he was really
quite good. He stayed away from anything that sounded like
racism and put most of his emphasis on state’s rights
which he thought would appeal, perhaps not to enough members
of the Court, but certainly to some of them. Marshall was folksier
and talked in terms of the silliness, if you will, of forcing
children apart just to go to school when they would get back
together again to play after school. I personally did not think
the oral arguments ended up changing much, but for what they
were trying to do, I thought they were both good.”

As Michael Klarman describes in his book, From Jim Crow
to Civil Rights: The Supreme Court and the Struggle for Racial
Equality (see page xx), the case presented Jackson with
a dilemma. Jackson believed strongly that judges should shed
their own personal views and render decisions based solely
on a neutral and thorough analysis of legal authority. But
in his reading of precedent and the intent of the framers
of the 14th Amendment, Jackson saw that path forcing him
in this case to support “Hitler’s creed,” his
scornful description of segregation. He had to find a middle
way.

“Jackson was concerned that
the Court was going to base its opinion strictly on sociology
and not on law,” explains
Prettyman. “But he pushed sociology aside by finding
that African-Americans had made such astounding progress since
the Civil War in every area that even if there had been grounds
then for separating black children from white children, as
a matter of law you could no longer distinguish between them.What
Jackson was trying to do was to divine what the framers meant
by equal protection in the light of today’s events. He
concluded that equal protection meant that you could not, without
some basis in fact, distinguish between two separate people
and treat them differently solely on the basis of race.”

According to Prettyman, Jackson completed
the first draft of his unpublished concurring opinion on
December 7, 1953, the day before the second oral argument.
Even though Prettyman thought that Jackson wrote it “rather defensively” and
found a good deal to criticize in the opinion, “still,
Jackson was concurring in overruling Plessy.My own guess is
that he knew from the beginning that he was going to go along.
To the extent that he was reluctant it wasn’t with the
end result, but what he thought the court might do in reaching
that result.”

Meanwhile, Prettyman and the other
clerks labored on cert petitions and memos and speculated
much like the rest of the country on how the Court would
decide. Depending on the personality of their justice, some
clerks had a clearer view into what was shaping up behind
closed doors, but security was very tight. Everyone knew
that either way, the result would have a profound impact
on the country’s future.

Warren was working on achieving a unanimous decision. Meeting
one-on-one with his justices over lunch, during walks, or in
his office, he used his political skills to put together a
consensus opinion that would bridge the gap between the legal
ambiguity and political reality that the case presented. After
he had persuaded Justice Reed, the last holdout, Warren knew
he had won.

From the map
of Spartanburg, SC, that Prettyman created for the Court
to use in preparing its “implementation” decision, Brown
II. Each blue dot represents one white child; each
red dot represents one “negro” child. Papers
of E. Barrett Prettyman, Jr., 1944 (1953-1955)-1982, MSS
86-5, Special Collections, University of Virginia Law Library.

An Opinion Written for the “Man
on the Street”

Prettyman was visiting Jackson in
the hospital where he was recovering from a heart attack
when the Chief Justice arrived with his draft opinion in
hand. Prettyman excused himself from the room and went down
the hall to wait. After Warren left, Jackson summoned Prettyman
back into his room and handed him the opinion to read. “When he asked for my reaction I
said I thought it could use a little more law and he did, too.
But now I think that is exactly what Warren intended. There
was a genius to his opinion. It had a flow to it. Anybody could
understand it. Its themes were simple and direct. The man on
the street could understand the point. And it didn’t
have a lot of the things that Jackson had worried about: that
they were going to excoriate the South or the school districts
or the district judges. Even though he didn’t agree with
the basic theme of it—distinguishing between the races
made black children feel inferior— he felt that it was
good at accomplishing what it was intended to do, and didn’t
do things he was afraid it would do. The opinion was like a
speech Warren would give as a governor trying to get across
some basic concept to the state legislature. He made it non-controversial,
easily understood, persuasive, and avoided areas that might
do him in.”

Though Jackson signed on to Warren ’s opinion, Prettyman
says that Jackson did not agree with Warren ’s position
that the history of the intent of the framers of the 14th Amendment
was equivocal. “ Jackson didn’t think it was equivocal
at all: he thought it was quite clear that the framers thought
that segregation should continue. But Jackson said, in effect,
that he couldn’t care less what the framers thought.
Jackson was not someone who thought that you had to divine
what the various people who had approved the Constitution were
thinking. He thought that was absurd. History develops, things
change, and the framers obviously never even conceived of most
of the things going on in the world in 1954. Therefore, you
had to take the Constitution and interpret it as best you could
when applying it to today’s events.”

A Nation Waits for the “Big
One”

As the Court’s term entered the spring of 1954, reporters
and interested observers began to show up every Monday, then
the Court’s “opinion day,” to hear the justices
render their decisions.With each passing week, the anticipation
grew. Finally, on May 17, 1954, the justices convened to read
that week’s decisions. In those days, each opinion would
go down through a tube to the basement where the reporters
were gathered so that they could grab it, read it, and place
their calls to their offices. But the Court announced that
the last opinion of that day would not go down through the
chute, so all the reporters ran upstairs.

“I WAS
OFF TO ONE SIDE, and
when [Warren] reached the key point he inserted ‘unanimously’—which
was not in the opinion—‘we unanimously hold,’ and
the courtroom took in a breath. You could actually hear
it because no one had expected that.”

“The atmosphere was quite extraordinary,” Prettyman
recalls. “ Jackson had left the hospital against doctor’s
orders to be present and show unanimity. The courtroom was
filled because we were getting near the end of the term and
everyone was waiting for the big one. The Justices had read
a couple of other opinions and made some new admissions. And
then the Chief Justice began to read the opinion. I was off
to one side, and when he reached the key point he inserted ‘unanimously’—which
was not in the opinion—‘we unanimously hold,’ and
the courtroom took in a breath. You could actually hear it
because no one had expected that. It was very dramatic.”

After the Brown decision came down, Prettyman got
a copy of the opinion signed by the court. When the decree
implementing the decision came down, he got a copy of that
as well. Owning the only two signed copies of both the opinion
and the decree, Prettyman could have added a true piece of
history to his collection of signed monographs and letters
that he keeps at his office. Instead, he graciously donated
them to the Law School library where they reside today.

Looking back, Prettyman believed that in
the end the Court would overturn Plessy, and the country
would be going through dramatic change. “It was unthinkable
to many of us in 1954 that the court would rule that you could
forcefully separate children into different schools based solely
on the color of their skin,” he says. “I personally
thought the die was cast as soon as they agreed to take these
cases. But there was a sense of history in the making from
the beginning, regardless of what the Court did. If they had
reaffirmed Plessy, we
realized that the country would go one way and if they were
going to overrule it, we actually worried about blood in the
streets. It was truly that momentous.”